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As we have seen, the Alabama provision is that,
The ballot must be a plain piece of white paper, without any figures, marks, rulings, characters, or embellishments thereon, not less than two nor more than two and one-half inches wide, and not less than five nor more than seven inches long, on which must be written or printed, or partly written and partly printed, only the names of the persons for whom the elector intends to vote, and must designate the office for which each person 80 named is intended by him to be chosen ; and any ballot otherwise than described is illegal and must be rejected.
The provisions of the Mississippi law applicable to the case of Lynch v. Chalmers, are: (1) That the ballot shall be without any device or mark by which one ticket may be known or distinguished from another, except the words at the head of the ticket, and (2) that a ticket different from that prescribed shall not be received or counted. The provisions of the Alabama statute applicable to the case now on trial, are: (1) That the ballot must be without marks, and must contain only the names of the persons for whom the elector intends to vote, and the designations of the offices, and (2) that any ballot otherwise than as described is illegal and must be rejected. In the Mississippi case the grounds of objection to the ballots were that certain printer's dashes separated different headings of the ticket. In this case the grounds of objection are that the ballots contained the designations of eight offices unknown to the law, and that they were so marked, by the use of peculiar paper, ink, and type, as to be readily distinguished from other ballots, even when folded. The differences between the two cases are too palpable to require or justify any comment.
What we have said is sufficient to show that these ballots are illegal; but there is other evidence in this case which makes their rejection still more imperative.
THE EVIDENCE SHOWS THAT MR. LOWE'S SUPPORTERS USED THE MARKED BALLOTS, TOGETHER WITH VIOLENCE AND TERRORISM, TO DESTROY SECRET VOTING.
The evidence shows clearly that the using of these ballots in the precincts where it is claimed they were rejected was for the unlawful pur. pose of preventing a secret ballot.
It is evident that with these ballots secrecy was impossible, and that such ballots could be identified in the hands of the voters.
It is certain that when voters are abused, terrorized, and ostracized for not voting as their leaders dictate, the weaker classes will hesitate before going to the polls with ballots different from those ordered by their leaders.
It was distinctly charged in the answer, and proved by over fifty witnesses, that the supporters of Mr. Lowe had unlawfully maintained a state of terrorism and alarm among the colored persons by threats of harm to their persons and property. (See Record, pages 506, 893, 894, 895, 896, 898, 900, 902, 904, 959, 960, 961, 962, 963, 964, 966, 967, 969, 970, 999, 1000, 1001, 1002, 1020, 1021, 1022, 1023, 1024, 1025, 1066, 1068, 1070, 1072, 1075, 1076, 1079, 1081, 1082, 1085, 1089, 1091, 1093, 1095, 1098, 1102, 1109, 1111.)
This uncontradicted testimony of more than fifty witnesses, including men of all parties and of both colors, shows that by threats of bodily harm, by ostracism, and by fear and intimidation, Greenback leaders have absolutely destroyed freedom of election among the weaker class of colored persons in the eighth district of Alabama.
A colored man, page 1079, swears that if colored men had been left to their own choice nearly all would have voted the Garfield and Wheeler ticket. They would have so voted had it not been for the threats of
the Greenback leaders, and this same character of evidence is found on pages 1067, 1068, 1071, 10731, 10753, 10814, 10834, 10851, 1089, 1092), 1096 1098, 11023, 1110, 1112.
It is also in proof (see bottom of page 1095) that two colored men, Peter Walker and John Bell, attempted to become candidates for the legislature upon the Republican ticket, and these Greenback leaders drove them from the town and threatened to kill them.
Also, on this subject, see pages 1066, 10707, 1073, 1075, 1079, 10854, 1087}, 1089, 10913, 1092, 1096, 1098, 1102, 11093.
We might stop with the above, but in passing we will call the atten. tion to the evidence of two of Mr. Lowe's witnesses, Wade Blankenship and William Wallace.
These men were party managers for Mr. Lowe. They testified that they required every man to carry his ballot at least a foot and a half from his body. (See bottom of page 224.)
Wallace says, page 234: “I told it to erery man. Now, I said, you hold your ticket 80 1 can see it." Wallace also testified, page 2231, as follows: Q. You thought it important to examine their wrist and see that there was nothing up their sleeves !-A. Yes, sir; I did.
Q. And you examined each one in this way?-A. Yes, sir. I examined every one that voted the ticket.
Q. You examined each one of the 156 colored men 1-A. Yes, sir; I did. Q. You examined their hands and sleeves to see that there could be no foul playA. Well, I did not feel of their arms and sleeves, but I examined their wrists close before I gave them their ticket.
We think the evidence shows beyond question that the policy of the Greenback party was to prevent a secret ballot. Mr. Lowe's witnesses, supporters, and managers swear they examined the wrists of voters, and made them hold the ballot at least a foot and a half from the body to prevent the possibility of their escaping the surveillance of party managers.
This was the plan adopted with colored men, but in localities where possibly objections might be urged to so close inspection of underclothing Mr. Lowe's managers adopted the plan of having the ballots marked so that they could without question identify the ballot in the hands of the voter.
We have examined the ballots, and cannot resist the conclusion that these ballots were issued to enable party managers to destroy the free-. dom and purity of the election, and to prevent secrecy of the ballot, and to place the voter under improper restraint or influence in casting his ballot.
More than year prior to November 2, 1880, this law had been construed by an eminent judge of the State of Alabama. His decision was as follows:
Cullman County :
In this case Charles Plato contests the election of Julius Damus to the office of mayor of the town of Cullman, in the county of Cullman, claiming to have been elected to that office himself by a majority of the votes cast at the election held on the first Monday in April, 1879.
The respondent claims to hold the office under the certificate of election issued by the proper officers under the provisions of the “ act of assembly to establish a new charter for the town of Cullman.” (Pamphlet Laws of 1879, p. 304, section 9.)
On examining and counting the votes it appears that fifty-four of them were cast for the contestant and twenty-seven for the respondent; of these fifty-four votes given for the contestant fifty-two had printed on them, at the top of the ballot, the words “Corporation Ticket," and of the twenty-seven votes cast for respondent three had in like manner printed thereon the same words, and the question for me to decide is whether or not those words rendered the ticket on which they were printed illegal ballots, and such as must be rejected.
The act approved February 12, 1879, Pamphlet Laws, pp. 72, 73, requires that the ballot must be a plain piece of white paper without any figures, marks, rulings, characters, or embellishments thereon,
on which must be written or printed only the names of the persons for whom the elector intends to vote, and must designate the office for which each person so named is intended by him to be chosen, and any ballot otherwise than described is illegal, and must be rejected.
The law under which the election now being considered was held, in section 4, Pamphlet Laws, 1879, p. 305, declares “that the election provided for in this charter shall be regulated by the general State election law."
The judicial officer of the State bas nothing to do with the propriety of a statute. If not void by reason of a constitutional inhibition, the judicial duty is limited to their construction and enforcement.
These ballots had more than only the names of the persons for whom the elector intends to vote, or the designation of the office, and must be rejected because illegal. Such is the mandate of law, and so I must declare it.
It is considered, adjudged, and ordered that the election of Julius Damus as mayor of the town of Cullman, in the county of Cullman, be confirmed, and that the contestant pay the costs of this court.
Judge, &c. JUNE 9, 1879.
THE STATE OF ALABAMA,
Cullman County : I, Julius Damus, clerk of the circuit court of said county, hereby certify that the foregoing is a full and complete transcript of the decision of Hon. Louis Wyeth, judge of the fifth judicial circuit, from the records of said court, in a cause decided by said judge, wherein Charles Plato was contestant and Julius Damus respondent.
And I further certify that the circuit courts of Alabama are courts of unlimited and appellate jurisdiction, and are the highest courts of the State of Alabama except the supreme court.
Given under my hand and seal of office this third day of January, 1882. (SEAL-STAMP.]
JULIUS DAMUS, Clerk Circuit Court of Cullman County, Alabama.
The numerous authorities which the contestee cites in pages 14 to 85 of bis brief, conclusively show that Congress and the courts and all law. writers have uniformly held that, under such a law as that of Alabama, ballots like those now under consideration are illegal.
1st. The law of Mississippi provides that all ballots shall be * 6 without any device or mark by which one ticket may be known or distinguished from another.”
This leaves room for debate as to whether the marks on the ballots were marks by which one ticket may be known or distinguished from another.
The Alabama law provides that the ballot shall have only the names of the persons for whom the elector intends to vote and the designations of the office;
» therefore this law does not give latitude for debate on this question.
The Alabama law and Pennsylvania law (see page 21 of contestee's brief) stand alone in this, that they alone prohibit anything being on the ballots but the names of candidates and designations of the offices.
In the report of the case of Lynch v. Chalmers the committee say, on page 11 :
It need, however, hardly be added that a line of carefully considered cases in the
States, in which such courts have undoubted jurisdiction, so far as they wonld apply in principle, would go a long way towards settling a disputed point of construction in any State election law. In fact it may be said that it would probably be the duty of Congress to follow the settled doctrine thus established.
On page 10: Where decisions have been made for a sufficient length of time by State tribunals, construing election laws, so that it may be presumed that the people of the State knew what such interpretations were, would furnish another good reason why Congress should adopt them in Congressional election cases.
And on page 12.: Had the opinion been rendered before the election of 1880, or become one of the settled laws of Mississippi, we do not say but that it would have such weight with us that, though we might disagree with it in logic, we might feel compelled to follow it.
Now, certainly, the facts in this case bring it within the principles here expressed.
The decision of Judge Wyeth was rendered June 9, 1879, seventeen months before the election of November 2, 1880.
1st. It was carefully considered.
3d. It had been made for a sufficient length of time; and above and beyond this, to use the language of Mr. Justice Curtis, 16 How., 27987, quoted page 11 of Lynch report, it was " needful to the ascertainment of the right or title in question between the parties."
The committee, in Lynch v. Chalmers, say: What we have here remarked does not, of course, apply to the marks or devices ordinarily used on tickets, such as spread eagles, portraits, and the like; those would be considered marks and devices of themselves, and not necessary in the ordinary mechanical art of printing. The use of the latter would be considered a violation of the statute in any aspect of the case, while the use of the former seems to us, view of the law, onght to be restricted to an intentional or manifest misuse.
We submit that this reasoning makes the Greenback ballots clearly obnoxious to the statute of Alabama.
The act amending section 274 is a remedial act. Sedgwick, page 309, says:
The words of a remedial statute are to be construed largely and beneficially, so as to suppress the mischief and advance the remedy. It is by no means unusual in construing a remedial statute, it has been said, to extend the enacting words beyond their natural import and effect, in order to include cases within the same mischiefs.
Remedial statutes are liberally expounded in advancement of the object of the legislature. (Blakeney 1. Blakeney, 6 Port., 109.)
A remedial statute must be construed largely and beneficially, so as to suppress the mischief and advance the remedy. (Sprowl v. Lawrence, 33 Ala., 674.)
Let us now see what was sought to be remedied by the amendment to section 274 of the code, approved February 12, 1879.
It is shown by the evidence, p. 1237 of the record, that at elections prior to November 2, 1880, the Democrats used ballots substantially in form to the exhibits above; that is, the exhibits on pages 1229, 1230, 1231, 1232, 1233, 1234, 1235, 1236, which have the words:
And one of which, page 1234, is almost precisely like the ballots which are rejected.
The evidence shows that at previous elections ballots were used sub. stantially like the Weaver and Lowe and Hancock and Lowe ballots, and that the remedy sought was to prevent the use of the very ballots which the Greenback party insisted upon using.
The report of the majority even admits the correctness of our position on this subject.
We are to bear in mind these facts :
1st. The election preceding and nearest to November 2, 1880, when such ballots were used, or could by any possibility have been used, was the election of November, 1876.
2d. The first legislature of Alabama which was elected after the November Presidential election of 1876 proceeded to and did amend section 274 of the code, and did prohibit by the law they enacted the use of the very ballots which the contestant swears were used in November, 1876, and preceding elections.
This shows what was to be remedied.
3d. That Judge Wyeth construed the law on June 9, 1879, just as we construe it.
4th. That the contestant swears that the August, 1880, canvass was made mainly by attacking this law.
5th. That with all this before them, he and his party managers defied the law they had denounced, and printed ballots and placed in voters' hands ballots which were prohibited by the law of the State.
6th. That nearly 100 witnesses in this case testify that the Greenback party compelled 'men to vote their ticket by threats and terrorism, and that 40 witnesses (including men of both colors and all parties) swear that but for this system of terrorism exercised by the Greenback leaders at least half of the people who voted for contestant would have voted with the party which supported the contestee.
Considering all these things together, we see how necessary it was for contestant to have a ballot which could be distinguished by his party leaders, in order to keep the weaker classes in line and prevent them from secretly voting as they desired.
LANIER'S PRECINCT, MADISON COUNTY.
The contestant, in his summary of the result of the election, rejects the official returns of Lanier's precinct, in Madison County, but at the same time counts for himself 128 votes, which he says he has proven by the depositions of witnesses. There would be no warrant of law for counting these 128 votes for the contestant, even if the fact were, as it is not, that he had successfully assailed the integrity of the returns, and had also proved by witnesses that those 128 votes were cast for him. For the law commands that the contestant shall, in his notice of contest, specify particularly the grounds on which he relies. But the notice of contest contains no allusion to any claim of these 128 rotes. In truth the notice of contest does not clearly advise the contestee of any purpose on the part of the contestant to demand even the rejection of the Lanier returns. It embraces a charge framed in these words: “That there was fraud and ballot-box stuffing, or a false count, and the substitution of Wheeler boxes for Lowe ballots,” at this pre